EEA(PR) - No CSI - sunk?

[TheresaMaySheStay]

Hi all,

Following Brexit, I've been looking to help my wife get citizenship, but most of the 5 year period that we'd like to count towards her EEA(PR) application - which I understand is a necessary precondition to citizenship - was spent as (what is likely to be considered) a student, without comprehensive sickness insurance (CSI) for a large part of her PhD.

Is there anything we can do to rescue the situation? Any alternatives we should be thinking about, e.g. seeking indefinite leave to remain under the normal immigration rules?

Some background:
I was born in the UK and have lived here for almost all my life, but have dual nationality (GB + French - the latter from my mother, who has lived in the UK for over 30 years).
In 2009, between phases of her Master's degree (in Germany), my German girlfriend (now wife) did 5 week's casual work in the UK. She then went to Paris to finish her studies and do some work there, through end of 2009 and all of 2010.
She came to the UK - properly, to get established here - in January 2011. She did some casual work for a month or so. She obtained a National Insurance number very early on.
She then took up full time work for 5 months in early 2011.
She started a PhD in September 2011, funded by a prominent UK biomedical research charity, set up and awarded by a prominent London university. The PhD "grant" was around £21-22k, tax free, no NI contributions.
Her existing health insurance from Germany (which provided EHIC cover whilst she was in the UK) ended in January 2013. We were unaware of the need to maintain CSI, so relied (without being a significant burden at all) on the NHS.
I was posted for 6 months to Brussels for work, during winter 13/14; she was still in London during that period.
We got married in May 2014.
Our daughter was born in late Jan 2015.
I added her to my private insurance in July 2015, and she has been covered by it ever since.
Her PhD ended in March 2016, and she started full time work in April 2016.
As a couple, our finances have been healthy throughout, but there have been periods where she was partly dependent on me (her month-long stint in the UK in 2009, plus a few months of unpaid maternity leave in 2015).

As I understand it, she may not have been a QP from Jan 2013 to July 2015, since she most likely would be considered a student during her PhD "studies" (despite having a boss, regular hours and premises, £20-21k income (untaxed), pressure to supervise others in the lab...), and didn't have private insurance during that period. The 5 year count-up only started in July 2015; any qualifying periods before then are wiped out, and treated as irrelevant.

Depending on what happens with Brexit, we might get shafted, since the 5 years will only be earned in July 2020, which might be a year too late, depending on which transitional provisions get put in place (if any). In any case, we might like to spend a little while on the continent before that (like many people from the rest of the EEA living here, she took the Brexit referendum as a pretty hard slap in the face) - so getting citizenship beforehand would be great.

Since I'm a British citizen (not just French), we don't have any argument she was dependent on a UK-resident QP (QPs must be "EEA nationals" under the EEA Regs, which is defined as excluding British citizens).

Does anybody have a view as to whether there is anything we can/ought to do in order to get her naturalised?
Is there any residual value in getting an EEA(QP) even if EEA(PR) is out of reach for now?

Sincere thanks in advance for your views!

[CR001]

She needs PR to qualify for citizenship and she needs a DCPR (document certifying PR) as this is mandatory to submit with her application for citizenship.

There is no short cut for citizenship unfortunately PR and proof of PR is mandatory.

How long have you been married?

Did you work and if yes, did you have medical insurance through your work covering both of you?

[TheresaMaySheStay]

Hi CR001 - thanks for the quick reply. I fully appreciate the need for DCPR for citizenship - unless, of course, IDLR is an alternative option here, but I don't think it is - admittedly, I know a lot less about non-EEA immigration law.

Fuller answers (inc. dates) for your questions are in the post above, but in short:
- we've been married since end of May 2014; i.e. 2 years, 4 months (approx).
- I have been working (in my current job) since 2012, but only put her on my work insurance in July 2015; prior to that, only I was covered.

[CR001]

Did she have a German issued EHIC for the duration of her studies?

ILR (or as you say IDLR) is not applicable to her as she is not on the UK immigration route.

[TheresaMaySheStay]

No, EHIC cover expired in Jan 2013.

[noajthan]

Hi all,

Following Brexit, I've been looking to help my wife get citizenship, but most of the 5 year period that we'd like to count towards her EEA(PR) application - which I understand is a necessary precondition to citizenship - was spent as (what is likely to be considered) a student, without comprehensive sickness insurance (CSI) for a large part of her PhD.

Is there anything we can do to rescue the situation?

...

Since I'm a British citizen (not just French), we don't have any argument she was dependent on a UK-resident QP (QPs must be "EEA nationals" under the EEA Regs, which is defined as excluding British citizens).

Does anybody have a view as to whether there is anything we can/ought to do in order to get her naturalised?
Is there any residual value in getting an EEA(QP) even if EEA(PR) is out of reach for now?

Sincere thanks in advance for your views!

Using NHS (or not) is immaterial.

A couple of longshots...

1) Did wife have a RC during/before 2012?

If so there is a transitional arrangement (McCarthy) that may help you as a dual citizen to be spouse's sponsor (despite being British too).
However it normally applies to spouses (so possibly unmarried partners but in a relationship akin to marriage, not just bf/gf)

2) Did wife have any alternatives to CSI? (apart from foreign EHIC)

For example:

• Did wife have a RC issued to her as a student in/before 2011?
  Any cover from a family member in home country that extended to cover her in UK during carefree student years?
  Could wife (as girlfriend at the time) be considered to have been sponsored by a Union citizen family member whilst a student?

3) Vocational training

As wife was originally a worker in UK I wonder if it can be argued that the University studies were vocational training? (retaining worker status).
Don't know much about that aspect of free movement - something you may care to dig into.

See HO guidance:
https://www.gov.uk/government/uploads/s ... _clean.pdf
- page 15+

Worst case: yes, do get a RC, EEA (QP) now.
May prove useful, if/when any transitional arrangements are put in place as they are typically predicated on having a RC by a certain key date.
(The McCarthy ta, mentioned above, is a case in point).

[TheresaMaySheStay]

Hi noajthan - thanks very much for the suggestions.

1) No RC in place at any time - I'll need to read into what they're even for!

2) I'm not aware of any alternative cover to EHIC.
a) no RC (how would that be an alternative to EHIC?)
b) no cover from overseas family members, that we know of
c) ... unclear. Does the sponsor have to be residing in the UK? By "sponsor", do you mean financially dependent on

3) I've wondered about this too. I've never heard of a PhD as "vocational training" but maybe an argument along those lines could be made. A PhD is such a long, open-ended affair, though, and seemingly unrelated to the job she had immediately before the PhD started (even if it was a precondition for the job she took on after the PhD, and was related to previous jobs and education that she'd had)


I'll read into McCarthy and RCs - thanks for the suggestion!

[johnkk]

Some other long-shots:

1. EHIC card and when it expires does not really matter, as long as you can prove that your wife had health insurance in another EEA country for a specific period. I have used this myself: My EHIC card was expired midway the period that I wanted CSI for, but I could fetch a letter from my EEA health provider saying that I was insured (thus I could have had a non-expired EHIC if I wanted to, but didn't).

2. How was the Phd work contract structured? Would it be possible to make it count as 'working' time instead of 'studying' ?

According to HO guidelines for being classified as 'worker' for some period, there's no need for a 'formal contract' or even a proper salary and work can be part-time. Note that I may be completely wrong here and this might not even be possible, but it may be worth pursuing whether you can have this time classified as 'effective' work, since as you say there was work involved. You'd need to prove that this work wasn't supplementary to the Phd though, so you'll need to count hours I guess.

A worker is an EEA national who is exercising their free movement rights in the UK by
working in paid employment on a full-time or part-time basis.
Evidence of this may include:
 payslips dated no more than six weeks before the application was made
 a letter from the employer confirming employment, or
 a contract of employment.
Assessing whether the EEA national is a ‘worker’
While there is no minimum amount of hours which an EEA national must be employed for in
order to qualify as a worker, the employment must be genuine and effective and not
marginal or supplementary.
Effective work may have no formal contract but should have:
 something that is recognisably a labour contract
 an employer
 agreement between employer and employee that the worker will perform certain tasks
 the employer will pay or offer services (such as free accommodation) or goods for the
tasks performed.
Marginal means the work involves so little time and money that it is unrelated to the lifestyle
of the worker. It is supplementary because the worker is clearly spending most of their time
on something else, not work.

[noajthan]

Hi noajthan - thanks very much for the suggestions.

1) No RC in place at any time - I'll need to read into what they're even for!

2) I'm not aware of any alternative cover to EHIC.
a) no RC (how would that be an alternative to EHIC?)
b) no cover from overseas family members, that we know of
c) ... unclear. Does the sponsor have to be residing in the UK? By "sponsor", do you mean financially dependent on

3) I've wondered about this too. I've never heard of a PhD as "vocational training" but maybe an argument along those lines could be made. A PhD is such a long, open-ended affair, though, and seemingly unrelated to the job she had immediately before the PhD started (even if it was a precondition for the job she took on after the PhD, and was related to previous jobs and education that she'd had)

I'll read into McCarthy and RCs - thanks for the suggestion!

RCs are optional EEA-related confirmatory documents that (surprise, surprise) merely confirm (but do not confer) status.
Useful to show to employers, landlords, border guards and similar.

But they are often used as a prerequisite to invoke a certain transitional arrangement (in context of EEA migration).

2a) Because there is a transitional arrangement for students without CSI based on having a RC:
https://www.whatdotheyknow.com/request/ ... issued.pdf

The ta dates from when the ever-present CSI requirement started to be enforced in UK; traditional British fair play in action, if you will.

2c) Yes, sponsor would be an EEA national in UK (eg parent) who is/was a settled or qualified person.

Yes, if over 21 a 'child' has to show dependence on parent/sponsor. Not necessarily 100% dependence.
(Different requirements to be met if an EFM instead of FM relationship).

3) Will need research. Look into any related case law.
You may get a refusal and have to fight your corner.
Worth a shot if its your last resort. After all its only £65 to apply for DCPR.

[TheresaMaySheStay]

RCs are optional EEA-related confirmatory documents that (surprise, surprise) merely confirm (but do not confer) status.
Useful to show to employers, landlords, border guards and similar.

But they are often used as a prerequisite to invoke a certain transitional arrangement (in context of EEA migration).

2a) Because there is a transitional arrangement for students without CSI based on having a RC:
https://www.whatdotheyknow.com/request/ ... issued.pdf

The ta dates from when the ever-present CSI requirement started to be enforced in UK; traditional British fair play in action, if you will.

I'm sure this has been discussed at length elsewhere on these boards, but it's hard to see a solid legal reasoning for basing TA entitle to RC possession - the relevant act in reliance on prior law was (arguably) exercising Treaty rights, coming to the UK, etc. - not obtaining (or not) an RC, since that was not required.

2c) Yes, sponsor would be an EEA national in UK (eg parent) who is/was a settled or qualified person.

Yes, if over 21 a 'child' has to show dependence on parent/sponsor. Not necessarily 100% dependence.
(Different requirements to be met if an EFM instead of FM relationship).

Seems unlikely. Her only UK connection at the time was myself. And I was only an "EEA national" if I benefit from the McCarthy-related TA (again, the lack of RC seems fatal). Besides, she was earning decent money at the time (21k p.a.)

[TheresaMaySheStay]

Some other long-shots:

1. EHIC card and when it expires does not really matter, as long as you can prove that your wife had health insurance in another EEA country for a specific period. I have used this myself: My EHIC card was expired midway the period that I wanted CSI for, but I could fetch a letter from my EEA health provider saying that I was insured (thus I could have had a non-expired EHIC if I wanted to, but didn't).

2. How was the Phd work contract structured? Would it be possible to make it count as 'working' time instead of 'studying' ?

1 - the insurance cover itself had lapsed, sadly.

2 - will look into this. I expect there are lots of other EEA students in a similar position, but from reading the CJEU Raccanelli case, it seems like a lot depends on the precise arrangements of the scheme she was on.

[noajthan]

RCs are optional EEA-related confirmatory documents that (surprise, surprise) merely confirm (but do not confer) status.
Useful to show to employers, landlords, border guards and similar.

But they are often used as a prerequisite to invoke a certain transitional arrangement (in context of EEA migration).

2a) Because there is a transitional arrangement for students without CSI based on having a RC:
https://www.whatdotheyknow.com/request/ ... issued.pdf

The ta dates from when the ever-present CSI requirement started to be enforced in UK; traditional British fair play in action, if you will.

I'm sure this has been discussed at length elsewhere on these boards, but it's hard to see a solid legal reasoning for basing TA entitle to RC possession - the relevant act in reliance on prior law was (arguably) exercising Treaty rights, coming to the UK, etc. - not obtaining (or not) an RC, since that was not required.

Don't expect logic or commonsense to apply. You misunderstand how tas work.

The various tas are clearly defined with clear prerequisites/clear cutoff dates (etc).
So if wife had had foresight to get a RC as student in/before 2011 she's be in the clear now (despite lack of CSI/EHIC).

The McCarthy ta depends on RC (as well as other factors, including marriage/partnership).

Yes, RCs are optional (as per EU law) but that is in general;
if you want to invoke a domestic UK ta (under UK EEA Regulations), say for lack of CSI in the UK then a RC is needed;
similarly to invoke the UK-specific McCarthy (dual citizen) ta a RC is required.

It may be that future tas for the '000s of migrants still in flight on the EU trajectory will also be predicated on having a RC.
It is in wife's interests to have one (possibly best invested £65 ever);

if nothing else get EEA(QP).
Then wait for British fair play to save the day as its almost certainly too late to acquire PR in the normal way any more.